313 Ga. 781 FINAL COPY
S22A0457. NELOMS v. THE STATE.
LAGRUA, Justice.
Appellant Andrew Neloms was convicted of malice murder and
other offenses in connection with the shooting death of Octavius
Brooks.1 He raises three claims on appeal: (1) the trial court failed
to declare a mistrial sua sponte when an FBI agent testified
regarding inadmissible evidence; (2) the trial court failed to conduct
1 The shooting occurred on November 1, 2016. On April 14, 2017, a Fulton County grand jury indicted Appellant for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), felony murder predicated on possession of a firearm by a convicted felon (Count 3), aggravated assault (Count 4), possession of a firearm during the commission of a felony (Count 5), and possession of a firearm by a convicted felon (Count 6). At a trial from September 25 to October 2, 2018, a jury found Appellant guilty of all counts. The trial court sentenced Appellant to serve life in prison without the possibility of parole for Count 1 and five years each for Counts 5 and 6, to be served consecutively, for a total sentence of life plus ten years. The other counts were either merged or vacated by operation of law. On October 4, 2018, Appellant filed a motion for new trial, which he amended through new counsel on March 18, 2021. The trial court held a hearing on May 21, 2021, and denied Appellant’s amended motion for new trial on October 14, 2021. Appellant timely filed a notice of appeal, and the case was docketed to this Court’s April 2022 term and thereafter submitted for a decision on the briefs. a Faretta2 hearing when Appellant declared that he wanted new
attorneys; and (3) trial counsel rendered constitutionally ineffective
assistance for failing to object to hearsay. We see no error, so we
affirm.
1. The evidence presented at trial showed that on November 1,
2016, a block party was taking place at an apartment complex
known as Alison Court in Fulton County. Appellant and his
girlfriend, Sierra Scott, were at the apartment of Mya Lewis and
Tabborious Thompson. Brooks was also present at the invitation of
Thompson.
According to Scott, at some point during the evening, Appellant
and Thompson left, leaving Scott and Brooks in the apartment.
Scott went into a back bedroom by herself, and Brooks entered
shortly thereafter. Brooks began to make sexual advances toward
Scott, who rebuffed him. Brooks then left the apartment, and Scott
left to look for Appellant. When she found him moments later, she
2 See Faretta v. California, 422 U.S. 806 (95 SCt 2525, 45 LE2d 562)
(1975). 2 told Appellant that Brooks “could have raped” her. Scott then left
Alison Court by herself and returned to a nearby hotel where she
was staying with Appellant and two other friends.
Cicely Thicklin, who was attending the block party, testified
that she was sitting on the front steps of the apartment building
drinking wine with Lewis. She saw Brooks sitting in the driver’s
seat of his car, which was parked outside the front door of the
apartment. Brooks was drinking a beer, listening to music, and
conversing with Thicklin and Lewis. Brooks did not have a weapon
with him. At one point, Thicklin also saw Appellant speaking with
Brooks, who was “making little gestures, and [Appellant] didn’t like
it, and then [Appellant] disappeared.”
Thicklin next saw Appellant come around the rear of Brooks’s
car wielding a shotgun. According to Thicklin, Appellant “pointed it
at the victim’s chest and he was saying something to the victim.”
Thicklin fled up the stairs, knocking on apartment doors, but nobody
answered to let her in. While she was doing so, she heard two
gunshots, then heard the blaring horn from Brooks’s car, which was
3 later determined to be Brooks’s head hitting the steering wheel.
Thicklin called out to Thompson, who responded to her and said,
“[Appellant] done killed that man.” Thicklin ran to a nearby
convenience store where she met up with Lewis. The two then
walked back to Alison Court together, and Lewis called 911 to report
the shooting.
Police officers responded to Alison Court and found Brooks
with a gunshot wound to his chest, but did not find a weapon at the
crime scene. The medical examiner testified that Brooks was shot
twice: once in the chest and a second time in his back. A firearms
expert testified that Brooks was shot at close range with a shotgun.
Police officers interviewed witnesses at the crime scene and
provided the lead investigator, Detective Summer Benton, with
contact information for Thicklin. Detective Benton contacted and
interviewed Thicklin, who provided Detective Benton with a
screenshot of a photo from Instagram and told Detective Benton that
the man in the photo was the person who shot Brooks with a
shotgun. Thicklin also told Detective Benton that she knew the
4 person in the photo “from around the neighborhood.” Detective
Benton sent a copy of the photo to police officers via email for
identification assistance, and an officer responded and provided
Detective Benton with Appellant’s name, which the detective
verified through police department databases. Responding officers
also provided Detective Benton with contact information for Lewis,
whom Detective Benton interviewed. During the interview,
Detective Benton conducted a photographic lineup, and Lewis
identified Appellant as the person running from the scene
immediately after gunshots were fired. Based on these interviews,
Detective Benton obtained an arrest warrant for Appellant.
Scott testified that on the night of the shooting, Appellant
returned to the hotel where he had been staying with Scott and other
friends. He told Scott that he wanted to get a haircut. Scott
confirmed that Appellant had dreadlocks on the night of the
shooting and that he got “a low cut” that night. At some point after
the shooting, Scott was with Appellant when she saw a news report
of the shooting containing Appellant’s picture. Appellant “didn’t
5 have a reaction” but was “focused on his appearance” in the news
report. Additionally, Scott received a phone call from Lewis, who
told Scott, “[Appellant] know what he did.” The next day, Appellant
insisted that Scott go with him to Savannah; Scott agreed and left
with Appellant and two people named Nino and Dallas. The four
left in a blue Chevy Malibu and stayed at a La Quinta Inn. The next
day, Scott and Appellant left the hotel room to get cigarettes, but
they were stopped and arrested by FBI agents as they were leaving
the hotel parking lot.
Douglas Dye, an FBI Special Agent based in Savannah,
received a phone call in January 2017 from agents in Atlanta
indicating that Appellant was possibly at a La Quinta Inn in
Savannah. On January 11, Agent Dye directed another agent to
take down the license plates of cars in the hotel parking lot; a blue
Chevy Malibu was associated with Appellant. Agent Dye then spoke
with hotel staff, who provided him with the room number associated
with the Malibu. Agent Dye directed other agents to monitor that
room. When Appellant and Scott left the room and entered the
6 Malibu, agents started to arrest Appellant. Appellant tried to
escape by driving away, but collided with FBI vehicles that blocked
the exit. Appellant was removed from the vehicle; Agent Dye
handcuffed him and searched him for weapons. After his arrest,
Appellant was returned to Atlanta.
Upon his return to Atlanta, Appellant asked to speak with the
investigating officers. In recorded interviews played for the jury,
Appellant initially told the officers that he was not present at the
scene of the shooting, but later recanted that story and claimed that
he shot Brooks in self-defense. While in jail, Appellant made
numerous phone calls to friends, explaining about how he “got
caught” and how he told the police a story about fighting with Brooks
over the gun; recordings of these phone calls were also played at
trial. Appellant testified at trial and maintained that he shot Brooks
in self-defense.
2. Appellant first contends that the trial court should have
declared a mistrial sua sponte upon the introduction of certain
allegedly inadmissible evidence. We disagree.
7 At a pre-trial suppression hearing, Appellant moved to
suppress the results of a search of the Savannah hotel room where
Appellant was staying on the day he was arrested. The prosecutor
announced that he had no intention to enter any evidence of the
search, and the trial court granted the motion to suppress.
At trial, Agent Dye testified to the following regarding
Appellant’s arrest in the hotel parking lot:
PROSECUTOR: And was a weapon found on the defendant? DYE: No. PROSECUTOR: And do you pat the defendant down? DYE: I do. PROSECUTOR: And, I guess, tell the jurors about that? DYE: Anytime that I pat somebody down, I always talk to them, tell them what I’m about to do, I ask them, do you have any weapons or anything sharp on you that’s going to hurt me, I am about to pat you down. PROSECUTOR: And what happens after that? DYE: He said he did not have any weapons on him, but he said if there was a gun, it’s in the hotel room, and it was his.
Appellant objected, and outside the presence of the jury, the
prosecutor argued that Appellant’s statement to Agent Dye was a
spontaneous utterance. Appellant argued that the statement was a
8 custodial statement made without Miranda3 warnings. The
prosecutor responded that the statement was not custodial because
Appellant was not being interrogated and reiterated his argument
that the remark was a spontaneous utterance.
Appellant requested both that the trial court provide a curative
instruction and that the remark be stricken from the record.
Notably, Appellant did not move for a mistrial. When the jury
returned, the trial court gave the following instruction:
Ladies and gentlemen, I want to instruct you that the last thing said, I believe, by this witness was that the defendant made a statement that he did not have [a] gun on him, but there was a gun in a hotel room, and that was an improper statement, and it needs to [be] stricken from your evidence, as well as stricken from the record, all right. We are going to proceed now. Please don’t weigh that at all in determining this case.
Appellant did not object to this instruction. However, he now
argues on appeal that the trial court “should have declared a
mistrial due to [the] manifest necessity created by the prosecution’s
behavior notwithstanding the request for the curative instruction,”
3 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)
(1966). 9 and despite the fact that the trial court actually provided a curative
instruction. Appellant claims that the prosecutor engaged in
prosecutorial misconduct by arguing that Appellant’s statements to
Agent Dye were spontaneous utterances, even though these
statements were made on the theory that Appellant was in custody.
Appellant argues that this alleged prosecutorial misconduct was
sufficient to warrant the declaration of a mistrial, and that the trial
court abused its discretion in failing to declare a mistrial. However,
Appellant has waived review of this issue.
A motion for mistrial must be promptly made as soon as the party is aware of the matter giving rise to the motion. If the defendant did not make a contemporaneous motion for a mistrial at the time the defendant became aware of the matter giving rise to the motion, then the defendant has waived review of this issue on appeal.
Thomas v. State, 310 Ga. 579, 581 (2) (853 SE2d 111) (2020)
(citations and punctuation omitted). Here, Appellant did not move
for a mistrial at the time of the prosecutor’s alleged misconduct.
Instead, he requested a curative instruction, which the trial court
then provided to the jury without objection from Appellant. Because
10 Appellant failed to make a motion for mistrial contemporaneously
with the behavior of which he now complains, the issue of whether
the trial court should have sua sponte declared a mistrial is not
properly before this Court for review. See id. at 582 (2); see also
Coley v. State, 305 Ga. 658, 662 (3) (827 SE2d 241) (2019) (issue not
preserved for appellate review where a motion for mistrial was not
made contemporaneously with the testimony that appellant
complained about). Accordingly, this enumeration fails.
3. Appellant next contends that the trial court erred when it
failed to hold a hearing to determine whether he was knowingly and
intelligently waiving his right to counsel. See Faretta v. California,
422 U.S. 806, 835 (V) (95 SCt 2525, 45 LE2d 562) (1975) (“When an
accused manages his own defense, he relinquishes . . . many of the
traditional benefits associated with the right to counsel. For this
reason, in order to represent himself, the accused must knowingly
and intelligently forgo those relinquished benefits.” (citations and
punctuation omitted)). We discern no error.
On the third day of trial, after a court recess, but before the
11 jury was called back in, Appellant’s trial counsel indicated that
Appellant “would like to proceed as a pro se litigant.” Trial counsel
stated that Appellant “doesn’t believe the representation he’s
receiving . . . is in his best interest.” Trial counsel then requested
that the court hold a Faretta hearing to determine whether
Appellant was intelligently and knowingly waiving his right to
counsel. The prosecutor did not object to this request.
In response, the trial court asked, “Well, what is the law? Do I
have to let him in the middle of the trial become pro se? I mean, he
should have decided this before we got this far, in my view.”
Appellant then responded, stating, “Maybe if somebody could help
me, assist me, or be another representative”; Appellant also
indicated that he felt that trial counsel was unprepared. The court
responded that they were in the middle of trial and would continue,
to which Appellant asked, “There is [no] way I can — if I could fire
my lawyers and get another lawyer to represent me?” The court
reiterated that it would proceed with trial and did so. Appellant’s
counsel continued to represent him.
12 Later that day, the trial court excused the jury and addressed
the matter again. The trial court told Appellant that he could choose
either to represent himself or continue with his current counsel but
that he could not have new counsel appointed. Appellant responded
that he would continue with his current counsel and confirmed that
decision two more times before the trial continued. Appellant
continued with this counsel through the close of trial and
sentencing.
Both the federal and Georgia Constitutions guarantee a
criminal defendant both the right to counsel and the right to self-
representation. See Faretta, 422 U.S. at 819-820 (III) (A); Taylor v.
Ricketts, 239 Ga. 501, 502 (238 SE2d 52) (1977). “The pre-trial
unequivocal declaration of a defendant that he wishes to represent
himself must be followed by a hearing at which it is determined that
the defendant knowingly and intelligently waives the traditional
benefits associated with the right to counsel.” Danenberg v. State,
291 Ga. 439, 440 (2) (729 SE2d 315) (2012) (citation and punctuation
omitted). “Requests to proceed pro se during trial, however, are
13 treated differently.” Owens v. State, 298 Ga. 813, 814 (2) (783 SE2d
611) (2016) (emphasis in original). A defendant “cannot frivolously
change his mind in midstream by asserting his right to self-
representation in the middle of his trial.” Thaxton v. State, 260 Ga.
141, 142 (2) (390 SE2d 841) (1990) (citation and punctuation
omitted).
Here, Appellant’s indication that he sought to represent
himself was not made prior to trial, nor was it unequivocal.
Appellant made his request on the third day of trial, after several
witnesses had already testified. Further, when Appellant spoke
personally to the court about his request, he indicated that he was
seeking new counsel to assist him; he did not indicate that he
wanted to represent himself. And upon revisiting the matter,
Appellant told the trial court that he would continue with his
current counsel. Thus, we cannot say that Appellant’s request was
an unequivocal one made prior to trial, so a Faretta hearing was not
required. See Danenberg, 291 Ga. at 441 (2) (appellant’s request one
hour into jury selection wishing to “dismiss [his lawyers] and be
14 given a little time to hire other lawyers or utilize a public defender
or proceed pro se” was not an unequivocal assertion of his right to
represent himself, and the trial court’s denial was not a deprivation
of appellant’s constitutional rights (punctuation omitted)); Thaxton,
260 Ga. at 142 (2) (appellant’s expression of dissatisfaction with his
attorney “cannot be construed as an assertion, much less an
unequivocal assertion, of his right to represent himself”).
Accordingly, this enumeration fails.
4. Appellant next contends that his trial counsel rendered
constitutionally ineffective assistance by failing to raise a hearsay
objection to an investigator’s testimony. This enumeration fails.
(a) To prevail on this claim of constitutionally ineffective
assistance of counsel, Appellant must show “both that his trial
counsel’s performance was deficient and that this deficiency
prejudiced his defense.” Merritt v. State, 310 Ga. 433, 435 (2) (851
SE2d 555) (2020) (citing Strickland v. Washington, 466 U.S. 668, 687
(III) (104 SCt 2052, 80 LE2d 674) (1984)).
To establish deficient performance, [Appellant] must
15 overcome the strong presumption that his counsel’s conduct falls within the broad range of reasonable professional conduct and show that his counsel performed in an objectively unreasonable way in the light of all the circumstances.
Id. (citation and punctuation omitted). And to establish prejudice,
Appellant “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694 (III) (B).
Appellant must prove both prongs, and if he fails to prove one prong,
this Court need not examine the other. See Merritt, 310 Ga. at 435
(2).
OCGA § 24-6-613 (b) provides that extrinsic evidence of a
witness’s prior inconsistent statement may be admitted, so long as
“the witness is first afforded an opportunity to explain or deny the
prior inconsistent statement and the opposite party is afforded an
opportunity to interrogate the witness on the prior inconsistent
statement or the interests of justice otherwise require.” See also
London v. State, 308 Ga. 63, 66-67 (3) (a) (838 SE2d 768) (2020).
Additionally, prior inconsistent statements that meet the
16 requirements of OCGA § 24-6-613 (b) are not hearsay if the
declarant testifies at trial and is subject to cross-examination. See
OCGA § 24-8-801 (d) (1) (A). “The failure of a witness to remember
making a statement, like the witness’s flat denial of the statement,
may provide the foundation for calling another witness to prove that
the statement was made.” Hood v. State, 299 Ga. 95, 99 (2) (786
SE2d 648) (2016).
(b) Here, Thompson was called as a witness for the State.
During his direct examination, he began to repeatedly invoke his
right against self-incrimination under the Fifth Amendment to the
United States Constitution in response to the prosecutor’s
questions. The prosecutor requested that the trial court instruct
Thompson to answer the questions, “as pleading the Fifth is for
questions that would incriminate yourself.” The court excused the
jury and conducted a conference in chambers with counsel,4 where
the prosecutor suggested that the court instruct Thompson to
answer the questions to the best of his ability without incriminating
4 Appellant waived his right to be present for this conference.
17 himself. Appellant’s trial counsel noted that Thompson had no
previous written or recorded statement that could corroborate or
impeach his testimony. However, the prosecutor responded that it
could call Fred Glenn as an additional witness; Glenn was an
investigator with the District Attorney’s office and was present
when the prosecutor met with Thompson before trial. Upon
returning to the courtroom, the prosecutor continued to question
Thompson, who largely testified, “I can’t remember.” Thompson was
then cross-examined by the defense.
Later, Glenn was called as a witness, and he testified that
Thompson and one of Thompson’s girlfriends, Tameka Wright, met
with the prosecutor and Glenn in September 2018 at Wright’s home
and that Thompson was “very forthcoming” in front of the prosecutor
and Glenn.5 Thompson told Glenn and the prosecutor that
Appellant lived with him at the time of the incident; that Appellant
told him he was going to kill Brooks because Brooks told Scott “that
5 Wright testified at trial and corroborated that both Glenn and the prosecutor met with Thompson and that Thompson answered their questions. 18 she had pretty lips”; that Brooks was unarmed and not bothering
anyone; and that he saw Appellant shoot Brooks in the chest and
back with a shotgun.
At the motion-for-new-trial hearing, Appellant’s trial counsel
testified that she agreed that “on the face of it, [Glenn’s testimony]
was hearsay.” However, she also testified that she chose not to object
to Glenn’s testimony because she believed the prior inconsistent
statement exception to the hearsay rule applied to Glenn’s
testimony.
Here, Thompson’s alleged lack of memory was sufficient
foundation to allow Glenn to testify as to the content of Thompson’s
statements during the September 2018 meeting. See Murdock v.
State, 299 Ga. 177, 179-180 (4) (787 SE2d 184) (2016). Further,
Thompson was present at trial, was asked about the statements he
made during the September 2018 meeting with the prosecutor and
Glenn, and was subject to cross-examination.
Thus, Glenn’s testimony was properly admissible as prior
inconsistent statements, and an objection on this ground would have
19 been meritless. Trial counsel therefore cannot be deemed ineffective
for failing to make a meritless objection on this ground. See Hendrix
v. State, 298 Ga. 60, 65-66 (2) (c) (779 SE2d 322) (2015) (“Insofar as
the State properly laid the foundation for the detective’s testimony
regarding these witnesses’ prior inconsistent statements, trial
counsel had no grounds for challenging this testimony and cannot
be adjudged ineffective for failing to object to it.”). Accordingly,
Appellant’s ineffective assistance claim fails.
Judgment affirmed. All the Justices concur.
Decided May 17, 2022.
Murder. Fulton Superior Court. Before Judge McBurney.
Kenneth W. Sheppard, for appellant.
Fani T. Willis, District Attorney, Lyndsey H. Rudder, Mathew
E. Plott, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, Michael A.
Oldham, Assistant Attorney General, for appellee.